CRINmail 62:
Children in Court

In this issue:

Introduction

This month, the Children in Court CRINmail contains the latest news and cases relating to refugee and displaced children, challenges against businesses for human rights violations, the digital rights of children, juvenile justice and more.

Latest news and cases

Refugee and displaced children

Last month Belgium’s highest administrative court ruled that families with minor children cannot be held in immigration detention centres under any circumstances. The Council of State annulled provisions contained in a royal decree implementing immigration legislation that allowed such detention in ‘exceptional cases’. The decree did not specify that the conditions in the place of detention have to be suitable for children and also allowed single members of the family to be detained, separating them from their relatives. The eight civil society organisations which launched the challenge have welcomed the decision, calling on Belgium to end the detention of children based on their migrant or resident status, a practice which contravenes the fundamental human rights of children as contained in the CRC and causes considerable harm.

Meanwhile, the European Court of Human Rights has delivered five decisions finding against France in relation to detention of minor children together with their parents who are subject to expulsion from the country. In all cases, the Court found a breach of the prohibition of inhuman or degrading treatment in Article 3 of the European Convention on Human Rights. Although the conditions of detention do not by themselves violate Article 3, given the young age of some of the children and the length of detention, the effects of their stay in a detention environment reach the required severity to find a human rights violation. A further violation of the right to liberty and to speedy review of the legality of detention under Article 5 was also found in three of the cases. The Court also noted that since the children have limited access to justice because they are not subject to detention themselves, so their rights are only considered if the domestic court chooses to take them into account.

In the United Kingdom, a recent High Court judgment has clarified that detaining asylum-seeking children who ‘look 18 or older’ is unlawful. The case concerned a 16-year-old refugee from Sudan whose immigration detention continued after an age assessment concluded that he was approximately 16 or 17. The Court ruled that determination of age is an objective fact and cannot be based on the beliefs of an immigration officer, as proposed by the government. Read CRIN’s case summary.

A challenge over the treatment of internally displaced persons (IDPs) in Nigeria has been dismissed by the ECOWAS Community Court of Justice. The ongoing conflict between Boko Haram and government forces has led to the displacement of around 3.3 million people since 2010. The NGO Socio-Economic Rights & Accountability Project launched proceedings against the State at the regional court in June last year, alleging that the government has failed to protect the rights of IDPs by failing to provide protection and assistance and systematically assess their conditions and situation, in breach of its obligations under the African Charter and other international instruments. However, in the court’s assessment SERAP failed to provide sufficient documentary evidence in support of its claims, such as evidence of closed down or neglected IDP camps or witness testimony. The case was dismissed for lack of merit.

Legal action against businesses

A Palestinian family has filed a case in France accusing company Exxelia Technologies of complicity in war crimes. The family lost three children, aged 8, 9 and 10, during an Israeli airstrike on their house in the summer of 2014. A component of the missile produced by the French company was found in the rubble of their destroyed home. The lawsuit alleges that Exxelia sold the components in question to Israel in the knowledge that they are likely to be used to commit possible war crimes, such as an attack on a civilian home. Lawyers representing the family stated that seeking justice through the Israeli legal system, which fails to abide by international law, is not an option, adding that the “French arms industry cannot escape its moral and legal responsibility [...] Selling pieces and components used to commit war crimes must be severely punished.”

In the United States, the Michigan Attorney General has filed charges against two engineering firms for their role in contaminating the city of Flint’s water supply with lead. The first company targeted is Veolia, contracted to help improve the city’s drinking water quality in early 2015; they produced at least one report stating that the city’s drinking water met the required state and federal standards, despite numerous reports to the contrary. The suit also names LAN, a firm tasked with overseeing the city’s switch to the Flint River as its drinking water source and which failed to prevent lead leaching into the city’s aging pipes. The Attorney General stated that the firms had “failed miserably in their job, basically botched it”, adding that not only did they fail in preventing the poisoning of the water supply, they “made it worse”. The two companies face civil charges of professional negligence and public nuisance, Veolia is additionally charged with fraud. The suit is seeking monetary damages, likely in the hundreds of millions of dollars.

Meanwhile, Australia’s consumer watchdog is taking the multinational company Heinz to court over misleading claims related to sugary foods marketed at one to three year olds. The suit concerns three products made from fruit juice concentrate and pastes, marketed as “nutritious food” and “99 percent fruit & veg”, which were found to contain 60 percent sugar. The Australian Competition and Consumer Commission brought the federal suit relying on Australia’s Consumer Law which requires companies to ensure that health claims do not mislead the public.

For more examples of litigation against corporations, see CRIN’s business and children’s rights page.

Privacy and digital rights

A United States federal appeals court dismissed all but one claim in a class action lawsuit against two companies - Google and Viacom - for the tracking of children’s activity online for the purposes of targeted advertisement. The challenge alleged that tracking data of games played and videos watched by children under the age of 13 on the Nick.com website is illegal under a number of federal and state statutes protecting the right to privacy online. The Court ruled that Google could not be held liable for breach of privacy because the law only allows complainants to sue “entities that disclose protected information, not parties, such as Google, alleged to be mere recipients of it”. However, because the mass media giant Viacom collected and disclosed the information to Google, it was subject to liability for the violation of federal statute and potentially some state privacy laws. The website in question also explicitly promised parents that their children’s data would not be recorded, despite Viacom allegedly knowing it would be. This surviving claim has been remitted to a district court. Read CRIN’s case summary.

Another pending class action suit in the United States against social platform Snapchat alleges that the company is responsible for disseminating sexually explicit content to minors, without notifying their parents, in violation of the Communications Decency Act. The video and picture sharing app is a phenomenon among young people with an estimated 10 billion videos viewed per day, allowing users to share messages that quickly disappear with friends and followers. However, one Californian 14-year-old and his mother have claimed that Snapchat Discover, a feature showcasing stories from the app’s media partners, frequently includes inappropriate material. The initial complaint was made after the teenager read an explicit article involving a favourite Disney character but it quickly became evident how much other adult content was being offered after a short session of scrolling through different curators’ content streams. Snapchat claims it has not yet been served with a complaint but stood by its partners’ editorial independence in a statement.

Meanwhile, a mobile advertising company based in Singapore has agreed to a $950,000 settlement for tracking children’s location without their consent. InMobi had stated that only users who ‘opt in’ will be tracked, however, it was later revealed that data about the wireless networks were connecting to was used to send targeted ads based on location and time to all users, including those who explicitly opted out. On top of this, the company admitted that it used apps targeted at children to collect some of the data, and is required by the settlement to delete all of this information, while implementing a more robust privacy policy. Commentators have suggested that while this is one of the first lawsuits of its kind it will not be the last, as the victory in this case will open up other advertisers for similar suits.

Juvenile justice

A French children’s court has sentenced two children for criminal conspiracy in connection with a terrorist enterprise for the first time. Two teenagers from Toulouse had travelled to Syria in 2014 after speaking with an Islamic State recruiter, but changed their mind and returned to France three weeks later. They received six month suspended prison sentences. A lawyer representing one of the boys praised the judge for not stigmatising them by branding them as terrorists, adding that “they were not at all conscious of the complexity of the situation in Syria”. The lawyer for the other boy stated that the sentence was compliant with France’s obligations under international instruments, including the CRC, and queried the motives of the Prosecutor for appealing the judgment.

Lawmakers in the Philippines are seeking to lower the age of criminal responsibility to nine years old from 15, claiming that youth offenders are being “pampered”, while “adult criminals – individually and/or in organised cabal – knowingly and purposely make use of youth below 15 years old to commit crimes, such as drug trafficking, aware that they cannot be held criminally liable.” The move comes as a proposal to bring back the death penalty for heinous crimes, such as treason, arson, and drug-related offences, was also introduced. Some senators fear the two bills could lead under-18s to be sentenced to life imprisonment or even death.

Read more about children’s rights and the age of criminal responsibility.

Corporal punishment in Zimbabwe

A lawsuit for grievous assault has been filed against a primary school after a teacher used corporal punishment on a six-year-old pupil in Zimbabwe. The girl was spanked with a thick rubber pipe because she did not present a parent’s signature on her homework, leaving her with heavy bruises and emotional trauma. The Justice for Children Trust and the child’s parent are seeking a declaration from the High Court that corporal punishment is unconstitutional as it breaches the prohibition on torture and children’s right to protection from any form of abuse. The Constitutional Court of Zimbabwe is already considering the issue after the High Court banned the judicial use of corporal punishment as a sentence for juvenile offenders in 2014. This prohibition was, however, suspended by the Constitutional Court while it considers the case. Over a year later, a final decision is still pending, meanwhile sentences for caning continue to be handed down.

Read about the legality of corporal punishment in Zimbabwe and in all other countries.

Discrimination

The Supreme Court of Namibia has held that children of foreigners born in the country can acquire Namibian citizenship if their parents are deemed to be ordinarily resident in the country. The ruling overturned a High Court decision in which a boy was denied Namibian citizenship, despite his parents having lived there for three years before his birth and it being the only place he had ever lived. The Dutch couple’s younger son, born in 2012, was granted citizenship at birth and the pair challenged the courts as to why their older son, born in 2009, should not have the same legal status. The decision marks an important change in interpretation of what it means to be ‘ordinarily resident’ in the country and will allow others to settle in the country without fear of seeing their children grow up without legal recognition of their identity.

A woman in Mexico has won the right to have her name appear first on her daughter’s birth certificate after going to court and arguing that the issue is one of gender equality. The woman had registered her own two surnames on the child’s documents as she was a single mother. A year or so later, the child’s father had the birth certificate changed to include his surname first, as is traditionally done in Spanish-speaking countries, which the Civil Code provided he can do without the consent of the other parent or the child. The Court found that the law states that a birth certificate must contain the surnames of both the father and mother but does not specify in which order they must appear. Therefore, as there was no law that required the man’s name to appear first, the plaintiff was allowed to amend the child’s birth certificate to feature her surname before the father’s.

Meanwhile in Albania, a group of civil society organisations have submitted a discrimination complaint against the State concerning the over-representation of Roma and Egyptian children in a care home for children in Shkodra. Roma and Egyptian children make up 58.8 percent of the children in the institution despite these groups representing less than one percent of Albania’s overall population. Once placed in institutional care, Roma and Egyptian children also have a significantly lower prospect of returning to a family environment than other children. The groups claim children living in poverty are routinely taken into state care with no attempt by the State to solve the underlying financial problems that lead them into the system or support Roma and Egyptian families facing social and economic problems.

In the United States, an 11-year-old Michigan girl with cerebral palsy has begun a legal battle against her school to allow her to bring her service dog into class. The dog assists her with opening doors and retrieving items, though the school argued that a human aide can help the girl. At the heart of the dispute is a disagreement over the appropriate avenue for this kind of complaint. The American Civil Liberties Union (ACLU), who is representing the girl, brought a court case under the federal Americans with Disabilities Act. The school’s lawyers maintain that an administrative complaint under the Individuals with Disabilities Education Act should have been filed instead. While they maintain that the administrative process requires parents and the school to work together to find a solution, ACLU is arguing that children should have direct access to the court without needing to go through administrative hearings that can be costly, time consuming and burdensome. The question will now be considered by the state Supreme Court. 

Minimum ages and best interests

The Moroccan parliament passed a bill increasing the age at which children can work in domestic settings from 15 to 16. Despite the legal minimum age, children as young as eight have been found undertaking domestic work, at times enduring hazardous labour, long working hours, low pay, and abuse. The Federation of the Democratic League for Women's Rights has called for the working age to be set at 18 stating that the law does not take into account that young girls across the country are being forced into labour reminiscent of forms of slavery. But reflecting on the systemic reasons why children work in the first place, rights activist Mohammad Babahida said: "The solution isn't to demand an end to child labour but rather to provide respectable work to their parents and to create a modern education system". Read more about child labour and children’s labour rights.

Child marriage has been outlawed in two African countries. Earlier this month the High Court of Tanzania decided that the minimum age of marriage is 18, striking down parts of the Law of Marriage Act as unconstitutional. The Msichana Initiative, an organisation advocating for girls’ right to education in the country, filed the challenge, arguing that early marriage violates the rights to equality, dignity and education and that it contravenes Tanzania’s Law of the Child Act. Meanwhile, the Gambian President has instructed the legislature that they have a deadline of 21 July to pass a bill outlawing child marriage, which envisions long jail sentences for adult spouses, parents and any persons aware of such a marriage who fail to act upon said information.

A recent decision of the Turkish Constitutional Court regarding criminal provisions relating to child abuse have caused discontent among civil society in the country. Last week, by a seven to six majority, the Court annulled a provision that treats all sexual activity with children under the age of 15 as “child abuse”. The question was referred by a lower court which noted that the law does not take into account that some children aged 12 to 15 may be able to understand the meaning of a sexual act and thus provide valid consent. One commentator stated that “[s]eeking a child’s consent in cases of sexual abuse is out of the question”, while another has said: “[t]he most important point is that unless this provision is urgently addressed, child abusers will start walking around freely because there is no new regulation [to fill the void].”

CRIN believes that the minimum legal age of sexual consent should be purely protective, in line with children’s evolving capacities, but it should not aim to control or criminalise children’s sexuality. To find out more about minimum ages and children’s rights, see CRIN’s website.

The Supreme Court of Switzerland has laid out principles for deciding relocation disputes between co-parents. The matter came before the Court after a woman appealed a lower court decision ruling that she cannot relocate to Spain together with her child following the father’s objection. The ruling holds that “the decisive question is to determine where, given the new situation, the best interests of the child will be preserved given the specific circumstances”. In assessing the facts of the case, the woman’s appeal was dismissed, but the Court also took the opportunity to pronounce a general principle for this kind of case which is likely to become more common since joint custody became the norm in the country in 2014.

Climate change challenge to proceed in Pakistan

Pakistan’s Supreme Court declared a seven-year-old girl’s lawsuit challenging the use of fossil fuels fit for hearing. Rabab Ali, the petitioner, who filed the case through her father, argues that the continued exploitation and promotion of fossil fuels by federal and provincial governments is in violation of the youngest generation’s constitutional right to life and the public trust. The Court decided that the case is admissible and that it should be heard alongside several other pending environmental cases.

To find out more about climate change litigation in the name of children, read our previous special edition Children in Court CRINmail.  

Legal resources

The Office of the Prosecutor of the International Criminal Court has published a draft Policy on Children that will guide the Office in its efforts to address international crimes under the Rome Statute against or affecting children, as well as the Office's interaction with children during the course of its work. Sign up to CRIN’s Armed Conflict CRINmail.

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